DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 87 of 14.3.2017
Decided on: 16.5.2018
Suraj Pal Singh son of Sh.Wazir Singh S/o Sh.Gian Singh R/o Village Takhthu Majra P.O. Pabri Tehsil Rajpura, District Patiala.
…………...Complainant
Versus
New India Assurance Company Ltd., through its Sr. Branch Manager, Caliber Market, Patiala Road, Rajpura, District, Patiala.
…………Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.Surinder Gupta,Advocate, counsel with complainant.
Sh.D.P.S.Anand,Advocate, counsel for the
opposite party.
ORDER
SMT.NEENA SANDHU, PRESIDENT
Sh.Surajpal Singh, complainant has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Party (hereinafter referred to as the O.P.)
2. In brief, the case of the complainant is that he is registered owner of car Alto No.HR-10T-0599.The said car was got insured with the OP for the period from 23.2.2015 to 22.2.2016, for a sum of Rs.2,10,000/-Unfortunately, the car in question met with an accident on 10.2.2016.At that time the same was being driven by Sh.Devinder Singh S/o Tarlochan Singh, who was going from Panchkula to Zirakpur. In the said accident, the car damaged extensively. DDR No.17 dated 11.2.2016got lodged with Police Station, Chandi Mandir.The complainant immediately informed the OP, it deputed Sh.Preet Mohinder Singh, surveyor and loss assessor to assess the loss, who submitted the report having assessed the loss to the tune of Rs.3.50,000/-.It is stated that the OP has not assessed the loss within 30 days from the date of receipt of surveyor report, as per guidelines of the IRDA.It is further stated that the OP wrongly repudiated the claim, vide letter dated 23.11.2016, on the ground that the driver of the car Sh.Devinder Singh was under the influence of liquor, at the time of accident. The rejection of the claim by the OP amounted to deficiency in service, which caused mental agony and physical harassment to the complainant. Hence this complaint with the prayer for giving directions to the OP to pay a sum of Rs.3,50,000/-, the loss assessed by the surveyor plus damages to the extent of Rs.50,000/- alongwith interest @9% per annum from the date of accident till realization and also to pay litigation expenses. Any other relief which this Forum may deem fit may also be granted.
3. On being put to notice, the OP appeared and filed the written version, taking preliminary objections that the complaint is not maintainable; that complicated questions of law and facts are involved and the same is liable to be dismissed. On merits, it is stated that car bearing No.HR-10T-0599 was insured with the OP for the period from 23.2.2015 to 22.2.2016 for a sum of rs.2,10,000/-. It is further stated that on receipt of intimation of loss on 13.2.2016, the OP immediately deputed Sh.Mohan Inder Singh, IRDA, approved surveyor and loss assessor, Rajpura to assess the loss, who vide his report dated 7.5.2016, assessed the loss to the tune of Rs.1,55,000/-.The surveyor found that the car was coming from Barwala to Rajpura and Sh.Devinder Singh ,Gursewak Singh and Sh.Harwinder Singh, suffered injuries in the accident, who were sitting in the car.The claim was not payable as the perusal of medical treatment record showed that at the time of accident the driver Devinder Singh was under the influence of alcohol, which amounted to violation of terms and conditions of the policy and the claim was rightly repudiated vide letter dated 23.11.2016.There is no deficiency of service on the part of the OP. After denying all other allegations made in the complaint, it was prayed to dismiss the complaint.
4. On being called to do so, the ld. counsel for the complainant has tendered in evidence Ex.CA, affidavit of the complainant alongwith documents Exs.C1 to C6 and closed the evidence of the complainant.
The ld. counsel for the OP has tendered in evidence Ex.OPA , affidavit of Sh.Gobinder Singh Walia, Divn. Manager of OP , Ex.OPB affidavit of Sh.Mohan Inder Singh, Surveyor, alongwith documents Exs.OP1 to OP4 and closed the evidence of OP.
5. We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
6. The ld. counsel for the complainant has argued that the duly insured car of the complainant met with an accident. In order to get the claim amount, the complainant lodged the claim with the OP but it wrongly repudiated his claim vide letter dated 23.11.2016,Ex.C1, on the ground that driver of the car in question was under the influence of liquor at the time of accident.
On the contrary the ld. counsel for the OP has argued that the OP has rightly repudiated the claim because in the medical report Ex.OP3 of Devinder Singh, driver, given by Govt, Medical College Hospital, Chandigarh, it is clearly written that ‘Breath smell of Alcohol positive’.
7. In the terms and conditions of the policy, annexed alongwith the document Ex.OP4, it has been mentioned that “the company shall not be liable to make any payment in respect of :-
a
a
and
(c) Any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent to the insured is under the influence of intoxicating liquor or drugs.”
8. In the medical report, Ex.OP3, of Sh. Davinder Singh, driver, it is written that ‘Breath smell of Alcohol positive’. But in the said report, it is not mentioned, what was the extent of the content of alcohol in the blood of said Devinder Singh. It is also not disclosed as to whether the said Devinder Singh was under the influence of intoxication or not. It is pertinent to note that as per medical text, the alcohol content up to 50 mg per 100 ml of blood is tolerable; such person will not show any sign of intoxication. Intoxication is perceived as a state of mind in which a person loses self control and ability to judge. As per Section 185 of Motor Vehicle Act, 1988, it would be considered, intoxicated only if the person is tested and found to have more than 30mg of alcohol per 100 ml of blood. In the present case, no test report had been produced to ascertain whether “Blood Alcohol Concentration” (BAC) had exceeded the legally stipulated limit. The mere smell of alcohol cannot lead to an inference that Sh.Davinder Singh, driver was under the influence of intoxicating liquor. Since the OP has failed to prove that at the time of accident Sh.Davinder Singh, driver was under the influence of intoxicating liquor, therefore, it is not justified in repudiating the claim of the complainant and is thus liable to indemnify the complainant for the loss suffered by him .In this context, we place reliance upon the judgment passed by the Hon’ble National Commission, in the Revision Petition No.2481-82 of 2013 titled United India Insurance Co.Ltd. Vs.Sheela & Ors. The Special Leave Appeal (Civil) No.26791-92 of 2014, preferred by United India Insurance Co. was dismissed by Hon’ble Supreme Court, on 8.10.2014.
Now the question, which falls for consideration is that what should be the quantum of indeminification?
From the motor survey report, Ex.OP1, it is evident that surveyor has assessed the loss to the tune of Rs.1,55,000/-.The said report has not been rebutted by the complainant. Therefore, the OP is liable to indemnify the complainant to the extent of Rs.1,55,000/-, as assessed by the surveyor alongwith interest. It is also liable to compensate the complainant for the mental agony and physical harassment suffered by him alongwith litigation expenses.
9. In view of the aforesaid discussion, we allow the complaint and direct the OP in the following manner:
- To pay Rs.1,55,000/-alongwith interest at the rate of 7% per annum from the date of repudiation i.e.23.11.2016 till its realization;
- To pay Rs.7,000/- as compensation for causing mental agony and physical harassment to the complainant;
- To pay Rs.5000/- towards litigation expenses.
The Op is further directed to comply the aforesaid directions within a period of 45 days from the date of receipt of the certified copy of this order. Certified copies of this order be sent to the parties free of costs under the rules. Thereafter file be indexed and consigned to the Record Room.
ANNOUNCED
DATED:16.5.2018
NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
